VCS ANPR PCN PAPLOC Now Claimform - double dipping - St Mary's Gate Retail Park, S1 4QZ ***Claim Dismissed***

[FTMDave]

Well, that only took a few minutes due to your excellent work.

 

I've written a single sentence about "double dipping" and apart from that just changed the order.

 

Let's see what the other regulars think.

WS.pdf

[brassnecked]

No need to try to be all legal and too wordy, judges like plain English with points made succinctly with the proof an back up information.

[holmer444]

Can I trouble you with what is probably a trivial question? The deadline for submission of the witness statement is Wednesday 9 June, I'm on holiday from this Saturday for a week (return home 5 June). If I was to wait until Monday 7 June to post the witness statement, does that give it enough time to get there or should I be looking to send it before I go (conscious that conventional wisdom in many of the threads I've read seems to be to wait as long as possible to sent the witness statement)?

[FTMDave]

It doesn't make much odds.  The reason we say to wait till late is so you get your hands on Simon's WS first and demolish it - as you have done.

 

So either post it this Saturday (e-mail the court's and send Simon's 2nd class so it takes ages to get there) ...

 

... or e-mail the court's, and post Simon's on 7 June, still 48 hours before the deadline.

 

BTW, on any of the VCS paperwork is there written "Legal Department"?  I ask as I think your WS should include an extra paragraph about the £60 Unicorn Food Tax that Simon has made up.  I don't see why he should expect you to pay Mr Wally's wages.  I'm just thinking of ammo before adding the paragraph.    

 

 

[holmer444]

Didn't realise that documents could be emailed to the court, that will save me a job as printing's a bit of a pain at the mo. I've just looked up the court on Gov.UK and it gives a standard email address ([email protected]), presume that's the right one?

 

Will check the VCS paperwork when I get in later

Edited May 26, 2021 by holmer444

[lookinforinfo]

The sign that you posted -was it at the entrance or inside the car park somewhere? The £100 charge looks too small in relation to the rest of the sign-and the charge should be prominent. Are there any signs in the car park that are different from the one you showed.

 

I take it that it was a free car park. If the sign that you showed is not at the entrance, could you please post up the one that is. There is usually one in their evidence pack but may not be the actual one that is on site-can you remember.

Can you please also post up the Schedules 1 and 2 in their contract with Scottish Widows.

[dx100uk]

TBH: i dont like 3 that makes the WS read more like an embarrassed defence at the start ..

 

it would be far better if you got away from the either or statements, it leads you far to wide open for this or that to be true or not.

dont forget to add i am the registered keeper of vehicle..

 

[holmer444]

Apologies all, been a fraught day. To answer some of the q's posed.

 

@FTMDave - the covering letter says Litigation department (presume that's the same thing?). I'll endeavour to get the missing pages scanned ASAP, I did scan it all earlier, but it didn't save .

@LookingForInfo - there are two types of sign in the witness pack, I'll get them both on later when I get a chance to re-scan. The car park is free and the two pages previously scanned were the only bits of the parking contract that were in the witness pack.

@dx100uk - I've removed the either or and made some other changes (another poster suggested adding in a line about being the registered keeper), so the intro now reads as:

 

Introduction

1.       I am xxx the named defendant in this matter and I assert that I am not liable to the Claimant for the sum claimed or any amount at all.

2.       I confirm I am the registered keeper of vehicle xxXX xxx.

3.       Except where specifically stated or admitted, no other element of this claim is admitted; the Claimant is put to the strictest proof of every element of its claim.

4.       It is not admitted that the defendant entered into any contractual agreement with the Claimant to pay any parking charge or amount.

 

Thanks so much for the input, I'm very grateful for any and all comments

Edited May 27, 2021 by holmer444

[dx100uk]

17 minutes ago, holmer444 said:

I assert that I am not liable

gobbly gooke 

you dont need it

 

1 to 4 looks like a defence or should have been.

you dont need to repeat that in your WS 

you've already filed it

 

simply start by stating i am the register keeper of the vehicle reg xxxxx

 

[FTMDave]

As there is quite a lot of retweaking going on, and using the version in post 51 as the starting point, I would suggest creating another small section between "Double Dipping" and "Conclusion", to deal with Simon's Unicorn Food Tax.  Something like -

 

Double recovery of costs

 

20.  The Claimant in claiming not only £100 for the PCN plus court fee and interest, but a completely invented sum of £60 for which there is no justification.  This seems to be a way of attempting to bypass the limit on costs at small claims.

 

21.  In case the Claimant tries to state that this case has somehow created extra unforeseen costs for the company, the fact is that the Claimant's company has a Legal Department as evidenced by its letter to the Defendant of 20 March (Exhibit XXXXX) and the company employs a paralegal as shown in paragraph 1 of the Claimant's WS.  Presumably it is the normal daily job of these employees to write legal letters.

 

Hopefully the section will be completely superfluous as the judge will have thrown the case out thanks to your prior points.  However, I think it's worth sticking the boot into Simple Simon and Mr Wally too over the Unicorn Food Tax.  From some reading up I've done I doubt very much that Simon really does have a Legal Department, but as he lies on his letters and pretends he does then he can pay the price!

 

As you're considering sending it off on Saturday, please post up a revised draft at sometime tomorrow if you can with all the retweaking done.

 

BTW, it's fantastic to read those words "I'm on holiday from this Saturday for a week" from someone again after so long!

 

[holmer444]

Right, back on it this morning. Evidence pack attached. I'll edit my WS and upload shortly.

Evidence pack v2.pdf

 

In the county court at Sheffield Claim No: 

Between

Vehicle Control Services Limited

(Claimant)

V

 

(Defendant)

Witness Statement

Introduction

1.       It is admitted that the Defendant is the registered keeper of XXnn XXX

 

Locus Standi

2.       The Claimant in paragraph 34 of the WS states ‘Following their appointment, the Claimant erected warning notices throughout the development’ A search of the Sheffield City Council planning portal shows no planning permission having been granted allowing signs to be erected at the address of the site referenced in the contract (item ref: MW1 in the Claimant’s WS). The lack of planning permission makes the erection of these signs illegal and therefore they cannot be relied upon as evidence in this case.

3.       The Claimant in paragraph 35 of the WS states a contract between Vehicle Control Services and Scottish Widows Investment Property Trust c/o Jones Lang LaSelle (item ref: MW1 in the Claimant’s WS) as proof the Claimant has authority to implement a parking scheme.

4.       Furthermore the Claimant acknowledges that this contracts has been in effect from 7 November 2011.

5.       In Paragraph 2 of item MW1 the contract states ‘The Company will provide a parking control service at the Car Park for a fixed period of 36 months from the 7th day of November 2011’

6.       The contract does not state that it can roll past 2014 by default nor is there proof that Scottish Widows Investment Property Trust paid the Claimant in 2021 making the contract null and void.   

 

Keeper liability

7.       The Claimant in paragraph 25 of the Witness Statement (WS) acknowledges they did not comply with Schedule 4, Protection of Freedoms Act 2012 (POFA 2012), whereby as the notice to keeper was issued by post, paragraph 9, sub-paragraph (4 and 5) allows the claimant 14 days to deliver to that address. The issue date on the notice to keeper was 9 January, 16 days after the alleged contravention occurred.

8.       Exhibit 2 is a screenshot of paragraph 9 of the POFA 2012, sub-paragraphs 4 and 5 have been highlighted. Sub-paragraph 4 (b) states that if the Notice to Keeper is sent by post it must be delivered to that address within the relevant period. Sub-paragraph 5 states that the relevant period for the purposes of sub-paragraph 4 is the period of 14 days beginning with the days after that on which the specified period of parking ended

9.       Exhibit 3 is the Notice to Keeper issued by the Claimant, this shows an issue date of 9 January, as this is 16 days after the date the alleged contravention occurred the Notice to Keeper was issued outside of POFA 2012 and is therefore not valid and unenforceable.

 

“Double dipping” - no breach of parking regulations

10.   Exhibit 1 is a screenshot from Google Maps. This shows the Defendant’s movements on the 24 December 2019.

11.   Exhibit 1 shows the Defendant visited The Moor from 11.16 to 11.47 then returned to their place of residence arriving at 12:09pm where they remained until 14:09.

12.   Exhibit 1 later shows that the Defendant visited The Moor for a second time from 14:33 to 15:01.

13.   The Claimant in production AA1 of their WS presents Signage Artwork, this signage states ‘Maximum Stay 1 Hour Commencing on Entry - No return within 2 hours’

14.   Therefore, either the Defendant was parked in the car park in line with the stated rules; or the Defendant was not driving the car at the time in question and can only be pursued under keeper liability. Counting two visits to a car park as one is known as “double dipping” and is a common defect of ANPR technology.

15.   The Claimant, in paragraph 27 states ‘The Defendant has failed to respond to these Notices and therefore the Claimant has pursued the Defendant as the liable party’

16.   Exhibit 4 is a letter dated 16 April 2020 sent to the Claimant upon receipt of their correspondence titled ‘Letter Before Action’. Exhibit 5 is proof of postage obtained when the letter was posted, also dated 16 April 2020.

17.   At no point did the Claimant acknowledge this letter nor investigate the Defendant's claim that the vehicle registered was not parked at the times the alleged contravention occurred.

 

Double recovery of costs

18.   The Claimant in claiming not only £100 for the PCN plus court fee and interest, but a completely invented sum of £60 for which there is no justification.  This seems to be a way of attempting to bypass the limit on costs at small claims.

19.    In case the Claimant tries to state that this case has somehow created extra unforeseen costs for the company, the fact is that the Claimant's company has a Legal Department as evidenced by its letter to the Defendant of 3 May (Exhibit 6) and the company employs a paralegal as shown in paragraph 1 of the Claimant's WS.  Presumably it is the normal daily job of these employees to write legal letters.

 

Conclusion

20.   The Defendant was not parked at the site at the times of the alleged contravention.

21.   The Claimant cannot rely on POFA 2012 to pursue the Defendant under Keeper Liability as they failed to serve the Notice to Keeper in the prescribed timescale.

22.   The Claimant has ignored correspondence from the Defendant and pursued legal action they are unable to substantiate.

23.   The Claimant has failed to provide evidence they sought planning permission for the erection of signs on the site.

24.   The Claimant has failed to provide a compliant contract demonstrating authority or a chain of authority to manage parking on the Land.

25.   The Defendant respectfully submits that the Claim is entirely without merit and therefore it is requested that the Claim is struck out and the case dismissed with any legal costs of the Defendant being reimbursed.

[FTMDave]

Looks a cracking WS to me - which will not only be superb for you personally to stick the boot into Simon, but will stay on the site as as a useful template for others in a similar situation.

 

Either send it tomorrow, and then enjoy your holiday thinking of Simon and Wally-of-the-feather-fame sweating in their office upon its receipt ...

 

... or send it off when you get back, makes no real difference.  Happy Hols!

 

[dx100uk]

17 hours ago, holmer444 said:

13.   The Claimant in production AA1 of their WS presents Signage Artwork, this signage states ‘Maximum Stay 1 Hour Commencing on Entry - No return within 2 hours’

 

+ there is no evidence the council stipulated any parking time restriction upon granting the initial planning consent, the normal free parking parking period being 2 or 3 hrs at such retail parks. Nor any evidence from the Council nor the claimant applying or being granted such a variance to only a 1 hrs time period. 

[brassnecked]

Yes incorporate what DX has posted  that adds clarity to it, as the PPC cannot unilaterally reduce a time limit agreed in the original planning permission, to a  lower time like a ludicrous reduction to say 30 minutes from 3 hours.

[lookinforinfo]

I hope you haven't sent off your WS as there are a number of additions that could help you win.

[holmer444]

Thanks all, WS not posted yet, will endeavour to update this week and will post/email to court next Monday (deadline is 9 June)

 

 

[lookinforinfo]

There are several points on their WS that require your attention which will help strengthen your case. Where there are questions on their WS I will follow their numerology.

 

9]  the driver did not accept the contract by entering the car park. Firstly the sign at the entrance does not lay out the terms of their contract it is just an invitation to treat. Secondly  the acceptance of a contract would not be until the driver had paid the required fee or if it is a free car park then the driver can stay for at least ten minutes without having accepted the contract.

 

11] while there are sufficient signs around the car park, the actual fee claimed for a breach of their terms is written in white on a blue background while the Terms and Conditions are written on a white background with blue writing. This appears to be a separate part of the notice, unrelated to the T&CS.

 

12] the defendant denies the driver stayed for longer than one hour.

 

13]the documents on MW2 are incorrect

 

19]the ANPR cameras are not infallible its success rate varies between 93% and 98% as confirmed here

http://nebula.wsimg.com/07f5430a8d1c9bafced3dd1585f678f8?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

 

26] the claimant admits that the NTK failed to comply with PoFA 2012 [sent out too late] thus they have no claim on the keeper

 

27] there is nothing in PoFA that requires the keeper to contact the claimant or even advise them who was driving. At no time does the claimant state whether he is pursuing the keeper as the keeper or as the driver. The claimant carries on to say that there are number of ways notwithstanding to pursue the Defendant without actually specifying any.  Maybe the Claimant doesn't know any but what cannot be done is to pursue the keeper.

 

45] the keeper decided that as they were not liable for the debt because there was no keeper liability and because  the car had complied with the Terms and conditions there was no requirement to enter into a dialogue knowing that VCS would not cease pursuit.

 

46] this is a gross breach of PoFA. The Claimant has already stated that they failed to comply with the Act so there is no Keeper liability regardless of whether the Defendant took "appropriate action" or not.

 

The Defendant has scoured PoFA and can find no reference to the Keeper where there is no liability  to be then liable for the debt for not taking appropriate action. The Claimant is put to strict proof of the existence of said provision in PoFA.  It would seem risking being held in contempt of court that anyone would sign a Statement of Truth  after such an outrageous claim.

 

47] the Keeper under PoFA is only invited by a parking company to provide them with the name of the driver if they were not the driver themselves. There is no compunction upon the keeper to provide the driver's name. This would appear to be a grey area for the Claimant and there is a question of how knowledgeable the Claimant is on the question of Keeper liability.

 

60] there may be warning signs all over the car park but not one of them has been authorised by the local Council under the Town and Country [advertisements] regulations 2007. This puts them in breach of their agreement with Scottish Widows where they agree to comply with the IPC  Code of Conduct  2.42  Be compliant with all necessary legislation. 

 

That also means they do not comply with DVLA terms either. So VCS assure all three companies that they are compliant when they are not. Their right to apply for motorists data from the DVLA relies on them being compliant with IPC CoP. So it calls into question  their right to even have applied to the DVLA for the Defendants data which would be a breach of GDPR and if the Judge agrees the current fee for breaches is around £750.

 

 

[brassnecked]

Lookedinforinfo has provided the belt and braces to rebut their  CRTL-C  CTRL-V WS.

[lookinforinfo]

To add a little more to your WS I have included an article on how to refute the extra £60  charge- 

 a. (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

 

'It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

 

It addresses the elephant in the room [ ie their WS]. They did not mention the £60 penalty charge. You must. They must be aware of that at VCS . Therefore Walli signed that Statement of Truth knowing that the £60 matter had been resolved several years ago. 

 

 

[lookinforinfo]

There were actually two elephants in the room-the other being the lack of planning permission. Not having it is something that Parking Eye cannot absolve them selves from since it was in their classic often quoted case that the truth about lack of planning permission was revealed. This next part therefore is a continuation of point 60] that I made in an earlier post.

 

I am referring to Parking Eye v Beavis in the Supreme Court -the one that all parking companies quote ad nauseam. There are times though when the judgement in that case goes against the parking companies and while the lack of planning permission itself did not appear in the case what was mentioned was how necessary it was for all parking companies to adhere to the BPA or IPC Code of Practice. 

 

You should say that it was Lord Neuberger in the Supreme Court, meaning that lower Courts had to follow, was 

111] " ........And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced."

 

Thus where in their respective Codes parking companies agree to comply with all relevant Laws relating to parking, by not having planning permission, they sacrifice their ability to use the DVLA for the data required to pursue the keeper.

 

The main point that Walli is making should not be about the signs being obviously visible  but that they shouldn't be there.  Lord Neuberger made it perfectly clear that Parking Eye et al had to comply with the CoP for that was the only reason that they could apply to the DVLA.

 

No wonder Mr Walli is not expecting to attend the hearing. He does not want to be challenged by the Judge over his Delaration of Truth that he signed, knowing full well that VCS have not complied with their CoP.  [Sorry I am doing a Walli and repeating myself but I cannot stress too much that if you make a meal of that part that they have failed to get PP I would think that VCS would not dare to take the case to Court.

 

 

[holmer444]

Apologies for the radio silence, my (hopefully) final version is below:

 

Introduction

1.       It is admitted that the Defendant is the registered keeper of XXnn XXX

 

Locus Standi

2.       The Claimant in paragraph 34 of the WS states ‘Following their appointment, the Claimant erected warning notices throughout the development’ A search of the Sheffield City Council planning portal shows no planning permission having been granted allowing signs to be erected at the address of the site referenced in the contract (item ref: MW1 in the Claimant’s WS). The lack of planning permission makes the erection of these signs illegal and therefore they cannot be relied upon as evidence in this case.

3.       The Claimant in paragraph 35 of the WS states a contract between Vehicle Control Services and Scottish Widows Investment Property Trust c/o Jones Lang LaSelle (item ref: MW1 in the Claimant’s WS) as proof the Claimant has authority to implement a parking scheme.

4.       Furthermore the Claimant acknowledges that this contracts has been in effect from 7 November 2011.

5.       In Paragraph 2 of item MW1 the contract states ‘The Company will provide a parking control service at the Car Park for a fixed period of 36 months from the 7th day of November 2011’

6.       The contract does not state that it can roll past 2014 by default nor is there proof that Scottish Widows Investment Property Trust paid the Claimant in 2021 making the contract null and void.

7.       The Claimant in paragraph 60 of the WS refers to the warning signs within the Car Park. There may be warning signs all over the car park but not one of them has been authorised by the local Council under the Town and Country [advertisements] regulations 2007.

8.       This puts the Defendant in breach of their agreement with Scottish Widows where they agree to comply with the IPC Code of Conduct 2.42 Be compliant with all necessary legislation. 

9.       The Claimant in paragraph 61 of the WS refers to Parking Eye v Beavis, in his summary of this case Lord Neuberger stated ‘111] " ........And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced."’ As this was a Supreme Court judgement, all lower Courts must follow

10.   This means the Defendant does not comply with DVLA terms either. The Defendant assure all three companies that they are compliant when they are not. Their right to apply for motorists data from the DVLA relies on them being compliant with IPC Code of Conduct. So it calls into question their right to even have applied to the DVLA for the Defendants data which would be a breach of GDPR.

The Contract

11.   The Claimant in paragraph 9 of the WS states ‘Upon the vehicle entering the Land, the driver accepted the Contract and agreed to be bound by those terms advertised.’ The driver did not accept the contract by entering the car park. Firstly, the sign at the entrance does not lay out the terms of their contract it is just an invitation to treat. Secondly, the acceptance of a contract would not be until the driver had paid the required fee or if it is a free car park then the driver can stay for at least ten minutes without having accepted the contract.

12.   The Claimant in paragraph 11 of the WS states ‘There is sufficient and adequate signage for the Terms and Conditions to have been brought to the attention of any motorist wishing to use the car park.’ Whilst there are sufficient signs around the car park, the actual fee claimed for a breach of their terms is written in white on a blue background while the Terms and Conditions are written on a white background with blue writing. This appears to be a separate part of the notice, unrelated to the Terms and Conditions (Claimant evidence ref: MW1)

Breach of contract

13.   The Claimant in paragraph 12 of the WS states ‘the vehicle was parked for longer than the maximum period permitted.’ The defendant denies the driver stayed for longer than one hour.

14.   The Claimant in paragraph 13 of the WS submits documents (item ref: MW2) as evidence of the vehicle in breach. The documents on MW2 are incorrect.

15.   The Claimant in paragraph 19 of the WS details the ANPR camera system used within the Car Park. The ANPR cameras are not infallible its success rate varies between 93% and 98% as confirmed here [do I add link or add documents to WS?]

Keeper liability

16.   The Claimant in paragraph 25 of the WS acknowledges they did not comply with Schedule 4, Protection of Freedoms Act 2012 (POFA 2012), whereby as the notice to keeper was issued by post, paragraph 9, sub-paragraph (4 and 5) allows the claimant 14 days to deliver to that address. The issue date on the notice to keeper was 9 January, 16 days after the alleged contravention occurred.

17.   Exhibit 2 is a screenshot of paragraph 9 of the POFA 2012, sub-paragraphs 4 and 5 have been highlighted. Sub-paragraph 4 (b) states that if the Notice to Keeper is sent by post it must be delivered to that address within the relevant period. Sub-paragraph 5 states that the relevant period for the purposes of sub-paragraph 4 is the period of 14 days beginning with the days after that on which the specified period of parking ended

18.   Exhibit 3 is the Notice to Keeper issued by the Claimant, this shows an issue date of 9 January, as this is 16 days after the date the alleged contravention occurred the Notice to Keeper was issued outside of POFA 2012 and is therefore not valid and unenforceable.

19.   Furthermore in paragraph 26 of the WS the Claimant admits that the NTK failed to comply with PoFA 2012 [sent out too late] thus they have no claim on the keeper.

20.   The Claimant in paragraph 27 of the WS submits ‘that the Defendant has been in receipt of ample correspondence from the Claimant in respect of the unpaid PCN.’ there is nothing in PoFA that requires the keeper to contact the Claimant or even advise them who was driving. At no time does the claimant state whether he is pursuing the keeper as the keeper or as the driver. The Claimant carries on to say that there are number of ways notwithstanding to pursue the Defendant without actually specifying any.  Maybe the Claimant doesn't know any, but what cannot be done is to pursue the keeper.

21.   The Claimant in paragraph 27 of the WS submits that the onus was on the Defendant to advise the Claimant whether he was the driver at the time of the alleged contravention. The keeper decided that as they were not liable for the debt because there was no keeper liability and because  the car had complied with the Terms and Conditions there was no requirement to enter into a dialogue knowing that the Defendant would not cease pursuit.

22.   The Claimant in paragraph 46 of the WS the Claimant suggests why they believe the Defendant is still liable for the parking charge, this is a gross breach of PoFA. The Claimant has already stated that they failed to comply with the Act so there is no Keeper liability regardless of whether the Defendant took "appropriate action" or not. The Defendant has scoured PoFA and can find no reference to the Keeper where there is no liability to be then liable for the debt for not taking appropriate action. The Claimant is put to strict proof of the existence of said provision in PoFA.  It would seem risking being held in contempt of court that anyone would sign a Statement of Truth after such an outrageous claim.

23.   The Claimant in paragraph 47 of the WS again asserts their assumption that the responsibility to provide the name of the driver rests with the Keeper. The Keeper under PoFA is only invited by a parking company to provide them with the name of the driver if they were not the driver themselves. There is no compunction upon the keeper to provide the driver's name. This would appear to be a grey area for the Claimant and there is a question of how knowledgeable the Claimant is on the question of Keeper liability.

“Double dipping” - no breach of parking regulations

24.   Exhibit 1 is a screenshot from Google Maps. This shows the Defendant’s movements on the 24 December 2019.

25.   Exhibit 1 shows the Defendant visited The Moor from 11.16 to 11.47 then returned to their place of residence arriving at 12:09pm where they remained until 14:09.

26.   Exhibit 1 later shows that the Defendant visited The Moor for a second time from 14:33 to 15:01.

27.   The Claimant in production AA1 of their WS presents Signage Artwork, this signage states ‘Maximum Stay 1 Hour Commencing on Entry - No return within 2 hours’

28.   Therefore, either the Defendant was parked in the car park in line with the stated rules; or the Defendant was not driving the car at the time in question and can only be pursued under keeper liability. Counting two visits to a car park as one is known as “double dipping” and is a common defect of ANPR technology.

29.   The Claimant, in paragraph 27 states ‘The Defendant has failed to respond to these Notices and therefore the Claimant has pursued the Defendant as the liable party’

30.   Exhibit 4 is a letter dated 16 April 2020 sent to the Claimant upon receipt of their correspondence titled ‘Letter Before Action’. Exhibit 5 is proof of postage obtained when the letter was posted, also dated 16 April 2020.

31.   At no point did the Claimant acknowledge this letter nor investigate the Defendant's claim that the vehicle registered was not parked at the times the alleged contravention occurred.

 

Double recovery of costs

32.   The Claimant in claiming not only £100 for the PCN plus court fee and interest, but a completely invented sum of £60 for which there is no justification.  This seems to be a way of attempting to bypass the limit on costs at small claims.

33.    In case the Claimant tries to state that this case has somehow created extra unforeseen costs for the company, the fact is that the Claimant's company has a Legal Department as evidenced by its letter to the Defendant of 3 May (Exhibit 6) and the company employs a paralegal as shown in paragraph 1 of the Claimant's WS.  Presumably it is the normal daily job of these employees to write legal letters.

34.   Furthermore, in ParkingEye Limited V Somerfield Stores Limited (8MA91364), Judge Hegarty stated in paragraph 419 ‘It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.’ It can be reasonably presumed that the Defendant would know of this judgement so once again, it would seem risking being held in contempt of court that anyone would sign a Statement of Truth after another outrageous claim.

 

Conclusion

35.   The Defendant was not parked at the site at the times of the alleged contravention.

36.   The Claimant cannot rely on POFA 2012 to pursue the Defendant under Keeper Liability as they failed to serve the Notice to Keeper in the prescribed timescale.

37.   The Claimant has ignored correspondence from the Defendant and pursued legal action they are unable to substantiate.

38.   The Claimant has failed to provide evidence they sought planning permission for the erection of signs on the site.

39.   The Claimant has failed to provide a compliant contract demonstrating authority or a chain of authority to manage parking on the Land.

The Defendant respectfully submits that the Claim is entirely without merit and therefore it is requested that the Claim is struck out and the case dismissed with any legal costs of the Defendant being reimbursed

[holmer444]

I'd appreciate any thoughts around paragraph 15 (part in square brackets).

 

Due date is Wednesday 9 June, I can email court copy, but won't be able to post VCS copy until tomorrow, will that be acceptable (first class) with proof of posting dated 8 June? Or am I better sending guaranteed next day?  

 

Also, received notification from the court a hearing has been scheduled for Monday 5 July, so wasn't sure if a couple of days grace with the WS might be acceptable?

 

Thanks as always! 

Edited June 7, 2021 by holmer444

[Gick]

Items 8 and 10 should read claimant, not defendant.

 

Haven't read all through, but cannot see square brackets anywhere.

[holmer444]

Thanks Gick, square brackets are in para 15:

 

15.   The Claimant in paragraph 19 of the WS details the ANPR camera system used within the Car Park. The ANPR cameras are not infallible its success rate varies between 93% and 98% as confirmed here [do I add link or add documents to WS?]

[FTMDave]

Well spotted Gick!